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Limits to Absolute Power: Eminent Domain and the Right to Land in India
Author(s): PREETI SAMPAT

Source: Economic and Political Weekly , MAY 11, 2013, Vol. 48, No. 19 (MAY 11, 2013),
pp. 40-52
Published by: Economic and Political Weekly
Stable URL: https://www.jstor.org/stable/23527343
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SPECIAL ARTICLE
Limits to Absolute Power

Eminent Domain and the Right to Land in India
PREETI SAMPAT
Infrastructure across the country must expand rapidly. In

As the conflict over land assumes a central dynamic
tion, especially based on manufacturing has also to acceler
within the "growing Indian economy", forcibleisation is inevitable. Land is an essential requirement fo
processes. is
acquisition, or the state's power of eminent domain, Government also needs to acquire land for a
public purposes (emphasis added; goi 2011a).
critical to various political and economic calculations.
This paper discusses the doctrine of eminent domain in
the context of dispossession and emergent landsition and Rehabilitation and Resettlement (larr) Bill
and
These opening words in the foreword of the Land Acqui
2011 introduced by the Ministry of Rural Development
resource conflicts in India. The origin of the doctrine in
(mord) in Parliament in 2011 disclosed a slippage. Stressing
pre-constitutional colonial law, the legal mechanisms of expansion, industrialisa
the need for land1 for infrastructure
land reform and acquisition laws through which itthefinds
tion and urbanisation, foreword said the government also
needs to acquire land forfor
expression, and the recently proposed mechanisms "public purposes" - whereas the bill
itself sought to expand the definition of "public purpose" to
acquisition that expand its power and conflate public
include activities undertaken by the private sector. Its latest
purpose with private capitalist interests are discussed.
avatar, the Right to Fair Compensation and Transparency in
The paper examines the dual nature that lends itself
Land Acquisition, toand Resettlement (rtfct
Rehabilitation
redistributive justice and the dispossession larr)
of Bill, already
2012 elaborates in detail this expanded scope of
land acquisition. As the conflict over land assumes a central
marginalised citizenry. It then examines the vexatious
dynamic within the "growing Indian economy", the forcible
concept of sovereignty animating the doctrine, discusses
acquisition of land, or the state's power of eminent domain, is
existing substantive limits to its power that
critical need toandbe
to various political economic calculations. Indeed,
that in around
given primacy and the uneven jurisprudence West Bengal nearly 35the
years of Communist Party of
India (Marxist) rule fell to massive electoral ousting following
doctrine. It argues for contextúa I ised rights to land- and
the state's serious mistreatment of popular resistance to land
resource-use regimes, concluding with observations on
acquisition is perhaps a bitter pill for many political elite. As
the implications of the doctrine's continuing
protests and
against forcible land acquisition in states like Orissa,
expanded scope. Andhra Pradesh, Tamil Nadu, Maharashtra or Assam or inad
equate compensation in Haryana or Uttar Pradesh continue,
the power of the state to acquire land forcibly has found itself
curtailed by electoral considerations. The rtfctlarr Bill
2012 is the latest attempt to resolve this contest over land (and
resources) in the legal domain.
-Absolute" power in the title of this paper is not totalitarian power but This PaPer examines the doctrine of eminent domain and its
exceptional power operationalised through certain legal provisions in evolution in contemporary India from its pre-constitutional
an ostensibly democratic framework, like eminent domain expressed in colonial antecedents. The legal instruments through which
the Land Acquisition Act 1894 that allows the state to overrule any doctrine has found an expression, redistributive land
dissent for land acquisition for public purpose. reforms Qn ^ Qne hand and dispossessi development
I would like to thank Usha Ramanathan and K B Saxena for insightful . . . rr .... , ,
discussions on eminent domain and land reforms, respectively. projects on the Other, offer an insight into Its dual nature With
Thanks are also due to Sanjay Parekh, Albertina Almeida, Krishnendu its potential for redistribution and expropriation. The questions
Mukherjee and other legal experts with whom I consulted and who around sovereignty and decentralisation of power it summons
referred relevant judgments and concepts. Thanks also to the anonymous pose important challenges for democracy. Can the doctrine of
reviewer for suggestions. Any errors are my responsibility alone. eminent domain be done away with? what substantive Hmits
Preeti Sampat (preeti.sampat@gmail.com) is a doctoral candidate in can be posed against the state's absolute power for land (and
anthropology at the City University of New York, the United States, resource) acquisition? Today, as equality is made to seem a
working on land rights and infrastructure policy.
distant dream, egalitarian agendas need rearticulation. Can
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: SPECIAL ARTICLE
we retain state power for redistributive purpose without the the doctrine of eminent domain. I conclude the paper by not
power of eminent domain? Where might we locate such power ing the implications of an expanded power of eminent domain,
constitutionally? What form might rights to land and resources
for all take beyond private property entitlements? Using mate- 1 The Doctrine
rial gleaned from legal, archival and ethnographic research, I The term eminent domain is ascribed to have originated in
interrogate concerns critical to struggles over right to land and Europe in 1625 in the works of Hugo Grotius and Samuel
resources in India today. Pufendorf (Dias 2004). Grotius argued that the property of
The first section of the paper focuses on the doctrine of emi- subjects lay under the eminent domain of the state tha
nent domain. I begin with existing legal provisions for land use, alienate and even destroy the property in the cas
acquisition, notably the extant Land Acquisition Act (laa) treme necessity and for public utility, while making g
1894, the Coal Bearing Areas (Acquisition and Development) loss to those who lose it.3 The doctrine of eminent dom
Act (cbaada) 1957, Land Reforms legislation and the National its origins in India in pre-constitutional colonial Brit
Rehabilitation and Resettlement Policy (nrrp) 2007. I then mon law. While not expressly articulated in the Indian
trace legal measures recently proposed in the light of the tution it manifests itself through laws that enable land
intensifying conflict over land in the country, which include tion by the state. The claim for compensation of loss
the Land Acquisition (Amendment) Bill 2007, the Rehabilita- erty to compulsory acquisition comes from natural la
tion and Resettlement (r&r) Bill 2007, the larr Bill 2011 and supposed "natural right" of a person to enjoy persona
the rtfctlarr Bill 2012.1 then address two critical aspects of erty animating the liberal theory of possessive indiv
the doctrine - the ongoing conflation of public purpose with and thus the right to compensation for its loss). In a 1
private (read capitalist) interest in the name of economic ment upholding the power of eminent domain for acq
growth; and the dilemma over the dual nature of the power of of land from big landlords for redistributive purposes,
eminent domain. preme Court of India thus noted: "the concept of acquisition
It should be noted that the speed with which measures have and that of compensation are two differe
been proposed in recent years to address land acquisition and their origin in different sources. One is fou
r&r underscores how critical the conflict over land and resour- power of the State to take, the other is b
ces has become. Conflicts and attempts for legal resolutions right of the person who is deprived of prop
have both intensified in the two successive governments of the sated for his [sic] loss" (ibid: 25). Inasmuc
centre-right Congress Party-led ruling United Progressive little role in the Indian Constitution and the
Alliance (upa) since 2004. However, the protests over land law from which the doctrine is drawn prec
acquisition have erupted in left-ruled, centre-right and Hindu Constitution, the doctrine of eminent
right-ruled states alike. That these developments occur in constitutional and pre-democratic mooring
the fullness of two decades of neo-liberal reforms2 in the coun- A similar argument can also be made fo
try offers an insight into the evolution of this conflict across entitlements, flowing as they do from natur
the political spectrum as ideological divides conflate in the common law precedents. The institution o
face of "economic growth" imperatives and at the expense of follows a historical trajectory significantly
local aspirations. British colonial rule,4 going at least as far back as the Perma
Section 2 of the paper begins with an examination of "sov- nent Settlement of Bengal in 1793 and extending int
ereignty" embedded in eminent domain and its vexatiousness, independence property regimes. This British colonial
even as it is often overproduced over vulnerable citizens. I ar- thrown sharply in relief by comparing the context of Go
gue that the power for forcible land acquisition must be cur- instance, which was under Portuguese colonial rule un
tailed and specified under clear constitutional principles In Goa, private property entitlements were not as pron
rather than an expansive "public purpose" backed by an inver- nor was the power of eminent domain applied for ac
sion of sovereignty from citizens to the state. Substantive re- of land and resources on any noteworthy scale. Inste
straints on the power of eminent domain exist in the constitu- and resources were largely collectively held under t
tional provisions of the Fifth and Sixth Schedules, the 73rd munidade Code that codified the traditional gaonkari5
Constitutional Amendment Act 1992, 74th Constitutional in each village. This may well be because of the pre-ca
Amendment Act 1993, the Panchayat Extension to Scheduled nature of the Portuguese colonial state. Post-independ
Areas (pesa) Act 1996 and the Scheduled Tribes and Other in India (and subsequently in Goa), the British c
Traditional Forest Dwellers (Recognition of Forest Rights) Act colonial legacy of eminent domain and private proper
(fra) 2006 and must be safeguarded. I then review some retained. Land reforms that sought to equitably redistr
judgments of the higher courts to examine their treatment of landholdings to landless peasants or tenants with ow
eminent domain. After this I explore the elements to be con- rights were also premised on private property entitle
sidered for securing rights to land- and resource-use for all Interestingly, the power of eminent domain gained c
beyond private property entitlements. Drawing upon the tional primacy over the right to property in India at
Directive Principles of State Policy (dpsp), I argue that redis- behest of land reforms for redistributive justice (se
tributive land reforms are imperative and need not draw upon However, the extent and range of the exercise of
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SPECIAL ARTICLE
domain has historically largely depended upon whom it is This includes provisions of new and existing villages; town or
directed towards - the more economically, socially and poli- rural planning; planned development under government
tically marginal the targets, the easier to acquire their land schemes or policy; a corporation owned or controlled by the
and resources. state; residential purposes for the poor, landless or those affe
cted by natural calamities, government projects or
1.1 Legal Instruments ment schemes; educational, housing, health or slum clearance
Land Reforms and the Land Acquisition Act (LAA) 1894: schemes; and acquisition for public offices. Its 1963 ru
Immediately after independence, the power of eminent include acquisition by the state for companies seeking
domain was only of a statutory character, operationalised providing houses to employees or "for any other pu
through Land Reforms legislation and the laa 1894.6 Land re- pose sanctioned by appropriate authorities" (goi 1985
form laws were enacted from the 1950s to break the concentra- are provisions hearing objections of those affected
tion of land with zamindars and to strengthen the rights of first notification, declaration and notice of compens
landless (read title-less) tillers and tenants. They imposed acquisition (Sections 4, 6 and 9, respectively), but th
ceilings on large landholdings and sought to redistribute the tent authority" (usually the same district collector
excess land thus nationalised. Invoking eminent domain for tions the acquisition) has final say in decision-makin
redistributive justice, land reforms soon lost political expedi- The constitutional status of the doctrine of emine
ence as they encountered resistance from landed elite with and the unqualified removal of the right to property
direct electoral implications for political parties. Except in damental right without attention to existing social
some pockets like West Bengal and Maharashtra, they met and economic inequalities resulted in making dalits,
minimal success and gradually lost salience in policy formula- poor peasants9 and the urban poor most vulnerabl
tions. In recent years ceiling laws in urban areas have been exercise of eminent domain under the laa 1894. As
entirely repealed and in many states greatly relaxed in rural vour for land reform died down and the state's "de
areas to facilitate large-scale private holdings of land in abject tal" projects took shape, by 2002, post-independenc
reversal of redistributive motives. land acquisition displaced 60 million people (Fernandes 2008),
The Supreme Court of India in its early phase (1950-70) who received little, let alone "just" compensation. Ironically,
struck down land reform legislation on the grounds that it more progressive public purpose of equitable redistributio
violated the right to property which was then a fundamental land facilitated the dispossession of already economica
right under Article 19 (1) (f) of the Constitution. This triggered socially and politically vulnerable people,
a severe reaction by Parliament - land reform laws pertaining
to takeover of property by the state were moved to the Ninth Coal Bearing Areas (Acquisition and Development) Ac
Schedule of the Constitution from the First (Constitutional (CBAA) 1957: While other minerals came under the Min
Amendment) Act 1951 onwards, which insulated them from Areas (Development and Regulation) Act with land acqu
judicial challenge and invalidation. The insertion of tion under the laa 1894, special acquisition legislation w
Articles 31A-C through the First Amendment and the 25th enacted for coal, given its historically iconic status as a sym
Amendment saved certain laws related to acquisition from of nationalism and the working class (Lahiri-Dutt et al 20
challenge under Articles 14 (equality before law) and 19 The cbaa 1957, modelled on the laa 1894, empowers t
(fundamental rights). This elevated eminent domain to a con- central government to undertake prospecting and acquisit
stitutional doctrine, although blanket protection from judi- of any potentially coal-bearing area. In a matter of seven d
cial challenge under the Ninth Schedule was later considered after serving notice to the occupier of the land, any stan
untenable (significantly after the Keshavanand Bharti vs the crop, fence or jungle can be cleared for prospecting w
State of Kerala judgment in 1973). The right to property was compensation paid before or at the time of such prospec
removed from the list of fundamental rights through the activity. If coal is discovered, the entire area for acquisi
44th Constitutional Amendment Act in 19787 by the Janata Dal could be notified within three years. Any objections to acqu
government, strengthening the power of eminent domain, tion and amount of compensation are to be made within
Even the right to compensation underwent various amend- days of the acquisition notice and the final decision on a
ments so that the legislature is now under no constitutional such claims and objections, like in the laa 1894, is to be m
obligation to pay compensation to those deprived of property by the "competent authority" appointed for the acquisit
under Article 300A, except to tillers of cultivated land for land, The valuation of compensation under the law expressly stat
buildings and structures standing thereon, and to minority that any profits emerging from what is below the surfac
educational institutions, excluding all other classes of land- the land or any future appreciation of prices must not be
owners and landless peasants, wage labourers and others who sidered. Thus, people are to part with land at current pri
faced dispossession from livelihoods and homesteads after ac- and cannot hope to partake of the wealth to be genera
quisition (Basu 2008). from it.10 As most mining areas including coal-bearing areas
The laa 1894 on the other hand is an extant colonial statute are forestlands with little "infrastructure and developm
retained post-independence with some amendments and pro- and are inhabited by adivasis and other forest dwellers,
viding for compulsory acquisition of land for "public purpose", valuation of these lands is historically extremely low
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SPECIAL ARTICLE
result, these areas have been subjected to flagrant cultural, communities. A key ingredient to minimise displacemen
ecological, economic, political and social dispossession and local participation in creating projects that account for loc
immiseration." needs and development. But the power of eminent domain
Since the 1980s, however, the enforced displacement of peo- envisages projects top-down a
pie for large development projects has been fiercely contested, and implementation without
Anti-displacement movements have raised critical questions (2007) argues, acquisition need
regarding social and environmental costs, prior informed con- merely in regard to compensat
sent of project affected including landless people, their legal public purpose.
entitlements and livelihood security and democratic process Existing legal measures have
and accountability of the state. The state's presumption of and conflicts over land by giv
public interest has been forced to grapple with vital questions eminent domain and overpro
regarding the "development" it undertakes - for whom and at citizens who are already econo
whose cost. Still, years of agitation have not translated into a vulnerable. At the same time,
clear legal mechanism addressing concerns regarding en- success in securing redistributiv
forced displacement, r&r, recent attempts notwithstanding, below to some recently prop
There has been in fact a historical disparity between the legal acquisition,
recognition of land acquisition and the lack of any effective
legal framework for r&r, even when explicit provisions for the Land Acquisition (Amend
latter in a development project are violated (Ramanathan Bill) and the R8rR Bill 2007: In D
2009). While recent attempts seek to address this disparity, of the controversy around land
the enactment of a law is awaited. caused by the special economic zones (sez
with the violence in West Bengal as a backdro
National Rehabilitation and Resettlement Policy (NRRP) government introduced the "twin
2007: The first central policy on r&r was drafted as late as 2007 and the r&r Bill 2007. Os
2004 and the newest one replaced it by the end of 2007. The versy over acquisition for co
preamble to the nrrp 2007 states: expanded the scope of acquisition. P
Provision of public facilities or infrastructure often requires the exer- ded the provision of land fo
cise of legal powers by the state under the principle of eminent domain naval, military and air force
for acquisition of private property, leading to involuntary displace- the state. Provision of land:
ment of people, depriving them of their land, livelihood and shelter; structure projects of the appr
restricting their access to traditional resource base[s] and uprooting vision Qf land
them from their socio-cultural environment. These have traumatic, 1111,1 1 i,
psychological and socio-cultural consequences on the affected popu- lic> for which land has been
lation which call for protecting their rights, in particular of the weaker ful contract to the extent of 7
sections of the society including members of the scheduled castes, total area of land required for t
scheduled tribes, marginal farmers and women (goi 2007a, p 33). (goi 2007b). The word "person
The nrrp's stated objectives include minimising displace- sociation or body of individuals,
ment and promoting non-displacing or least-displacing alter- The expression "infrastructu
natives; ensuring adequate and expeditious rehabilitation relating to generation, transmis
with the active participation of the affected families; ensuring construction of roads, highway
protection of the rights of scheduled castes and scheduled systems or mining activities; w
tribes (scs/sts);12 providing better standards of living with tion and sewerage projects; or an
sustainable income to affected families; integrating rehabilita- by the goi. With increasing priv
tion concerns into development planning and implementation projects, for instance, in and
processes; and facilitating harmonious relationships between taken by private corporations
the acquiring body and affected families. It states: partnerships (ppps) to serve the
, ... , . , ,, .. power, water supply or sanitation, or to earn profits by levying
...There should be a clear perception, through a careful quantification r > rr j
of the costs and benefits that will accrue to society at large, of the de- user charges rather than to secure access to infrastructur
sirability and justifiability of each project. The adverse impact on af- services for all14 (Dwivedi 2010). "Any purpose useful to the
fected families-economic, environmental, social and cultural -needs general public", vaguely articulated, risked arbitrary as
to be assessed in a participatory and transparent manner (ibid: 34-35)- ssment largely determined by blinkered top-down and capi
While these are useful policy directions, they mean little in list development perspectives and/or the rampant corrupti
practice without specific laws mandating them. Despite in the execution of government policies, projects and p
acknowledgement of concern for the displaced and democratic grammes. In the face of strong opposition from peasant a
process, the policy does not make the right to informed citizens groups as well as some political parties particularly
consent explicit. Panchayat or other local body resolutions with respect to land acquisition for sezs, the twin bills w
find no mention in ascertaining the views of the affected eventually dropped.
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SPECIAL ARTICLE
The Land Acquisition and Rehabilitation and Resettlement not exceed limits notified by the appropriate government
Bill 2011 and the Right to Fair Compensation and Trans- (state or central depending on jurisdiction which: (a) in the
parency in Land Acquisition, Rehabilitation and Resettle- first place initiates acquisition, and (b) eventually determines
ment Bill 2012: In another attempt as controversy over com- the appropriateness of public purpose), nor exceed the total
pensation erupted in the northern states, the laa Bill 2011 was net sown area of the district or state! It stipulates that an
introduced in September 2011. Going further than the Amend- equivalent area of cultivable wasteland shall be developed or
ment Bill, it sought to replace the laa 1894 and bring r&r for equivalent amount to the value of such land shall be deposited
the first time within the ambit of a land acquisition law. This with the appropriate government for investment in agriculture
was a welcome move, but the bill clearly conflated public pur- to enhance food security. Given the paucity of agricultural
pose with industrialisation, infrastructure development and land and population densities, the latter option seems most
urbanisation. That this emphasis came from the mord, when likely. Given the propensity to encourage agribusiness in cur
significant populations facing the brunt of forcible acquisition rent policy, food security can likely be conflated with food pro
and fiercely resisting it live in rural areas was ironic. duction rather than the secure right to food for all, even as
The third and latest version of the bill was released in land and resources get alienated from local producers for pub
December 2012 after several rounds of deliberations between lie purpose. A senior bureaucrat151 interviewed in the course
various goi ministries, especially upset over compensation of my research revealed that the opposition to the clause of no
and consent provisions and facing pressure from industry multi-crop land being acquired largely came from the chief
lobbies. It has ignored many elements proposed by the Parlia- ministers of fertile green revolution states who felt that they
mentary Standing Committee on Rural Development (like no would not be able to "invite" any industry into the state with
government acquisition for private parties), and is ambitiously this clause.
named the rtfctlarr, 2012 (for accounts of deliberations see Legal entitlements for r&r for landowners and landless
Goswami 2012a, 2012b, 2012c; Ramadorai 2012; Vohra and labourers, artisans, fisherfolk, tribal and traditional forest
Das 2012; et 2012a, 2012b; Firstpost 2012; PTi 2012a, 2012b; dwellers were covered by all the versions of the bill which is
Reuters 2012; ndtv 2012) claiming that it is: significant. However, the initial version of the bill was to have
...A Bill to ensure, in consultation with institutions of local self- retrospective effect for five years, but with criticism and resist
government and gram sabhas established under the Constitution, a ance from industry, the subsequent versions dropped this
humane, participative, informed consultative and transparent process The 2QU m assumed tha£ œnflkts Qver land acquisi.
for land acquisition for industrialisation, development of essential in- ... 111. • 1 . r
frastructural facilities and urbanisation with the least disturbance to tl0n COuld be reSolved ^ ^creas
the owners of the land and other affected families and provide just the market rate of land in rural ar
and fair compensation to the affected families whose land has been (although whittling down of these
acquired or proposed to be acquired or are affected by such acquisition offing, see Ghildiyal 2012), with
and make adequate provisions for such affected persons for their reha- tion benefits. DeSpite itS n
bilitation and resettlement thereof, and for ensuring that the cumula- _ , . ... . „ . . , , r .
tive outcome of compulsory acquisition should be that affected per- Cem 011 Land Acquisition ISSUeS , the b
sons become partners in development leading to an improvement in unlike in the northern states (and
their post-acquisition social and economic status... (emphases added; many areas whether Nandigram or
goi 2012). Raigad in Maharashtra, or in villages in Goa, Andhra or
The rtfctlarr 2012 defines "public purpose" and thus the Odisha, people have tenaciously agitated
scope of eminent domain in unambiguous detail including lives and livelihoods against the acqui
acquisition by appropriate government (state or central) for not for greater r&r. Worse, the rt
(a) own use, hold and control (including public sector under- tion further, leaving it to the appropr
takings); (b) for ppps where land continues to vest with the mine whether compensation should b
government; and (c) for private companies for public purpose land or twice that in rural areas, and
(excluding private hospitals, educational institutions and urban areas at market value. Whil
hotels). Public purpose projects include acquisition for strate- 100% solatium award plus 12% interes
gic defence purposes; infrastructure projects as notified by the or acquisition, the determination of th
goi; agriculture related projects; industrial corridors, mining done by calculating the average mar
and the national investment and manufacturing zones (nmizs) ; tions in the area for previous three ye
water and sanitation, educational, sports, healthcare, tourism, sale transactions. Real estate deve
transportation - and space - programme related projects; and didly disclosed that sale deeds never r
housing and development plans of various categories. of any area of land as the parties in trans
The initial draft of the laa Bill allowed no acquisition to avoid stamp duties. A significant amoun
of multi-crop irrigated land, but the second version altered paid "under the table", contributing t
this with the qualifier that it could be minimally acquired countable and obscure "black economy"
and never above 5% of the state's total cultivable area. The the significant escalation of land and
rtfctlarr Bill states that such land shall be acquired only affected areas once a development pro
under "exceptional circumstances" as a "last resort" and shall unaccounted for, as awards are to be
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: SPECIAL ARTICLE
rates. The whittling down of factor multiples will thus lead to will make recommendations to the appropriate government,
unjust compensation and dispossession. Objections to compensation awards can be made to a duly es
The initial bill imposed r&r coverage to land purchased by tablished laa authority that is to function as a civil court with
private parties for any project over 100 acres in rural areas and the next appeal to the high court. The appointment of an laa
50 acres in urban areas. Industry representatives and develo- authority independent of the appropriate government is wel
pers I interviewed claimed that the coverage of the r&r provi- come, but its jurisdiction covers only compensation awards
sions to private purchase coupled with high compensation and not the determination of public purpose or consent,
rates in the earlier bill would render large-scale projects ex- Violating the spirit of the corpus of laws protecting sche
tremely costly, and that the higher compensation at the time duled areas and tribes (see discussion of these laws later), the
indicated the electoral political calculations of the upa. The rtfctlarr allows for the acquisition of their lands albeit with
rtfctlarr, at much lower rates, extends the coverage of r&r prior consent of gram sabhas or councils. In all other areas
for private purchase only above an area specified by the appro- consent is required only for private projects requiring 80%
priate government, or if the appropriate government is ap- consent and ppps requiring 70% consent (the difference seems
proached for land acquisition, to the entire area. While this arbitrary) and the sia is to include the consent process. How
devolution of decision-making to appropriate government may ever, no clear procedure as to how consent may be ascertained
ostensibly safeguard federalism, competitive bidding by states is mentioned and while gram sabhas and urban local bodies
to attract investment can raise such limits arbitrarily and ere- are to be consulted, resolutions taken by these bodies find no
ate spiralling private concentration of land, exempting signifi- legitimate mention. The steps to be followed if there is no con
cant private purchase from r&r obligations. Moreover, with sent are also not mentioned. Considering that the sia is largely
no ceilings on the extent of land that can be acquired for any to determine the public purpose of a project and the estima
project in a country, as densely populated, unfettered acquisition and award of compensation is to follow once such purpose
tion will intensify inequalities of ownership, access and is established, the inclusion of consent before the estimation
wealth, r&r provisions must be extended to private purchase and announcement of intended award would fail to establish
of land and limits determining r&r applicability are unlikely informed consent. Of course, other than the scheduled and the
to protect vulnerable populations from destitution. Panchayat (Extension to Scheduled Areas) Act (pesa), 1996
On the question of government acquisition for private enti- areas consent is not required for government acquisition for
ties, developers I interviewed argued that land must be secu- its own use.
red by the government for industry to flourish (so much for How many and what kinds of changes the rtfctlarr Bill
the "free market" of willing sellers and buyers). One senior will go through before it is eventually passed remain to be
industry representative16 was of the view that large-scale land seen. Given the constant parliamentary stand-offs that the upa
acquisition for any ruling party alliance would be difficult in is facing, when and how this bill will become law is an open
the multiparty democratic political framework of India question. In reinforcing the state's power of land acquisition
dependent on alliances and only a "strong" government at without consent for its own use for exhaustive public purposes,
the centre could ensure land for investors, pointing out by legitimising government acquisitions for private entities, by
Gujarat as an industry-responsive state with an ideal and including acquisition in the scheduled areas, by whittling
"strong" statesman like Narendra Modi. Conversely, senior down compensation, vaguely formulating consent clauses for
bureaucrats while addressing meetings and in interviews private acquisition and disregarding ceilings for acquisition
openly admitted a clear recognition of the political limits to and concentration of land, the rtfctlarr extends the scope
large-scale land acquisition given the widespread agitations of the eminent domain alarmingly. And until such time as a
across the country. The Parliamentary Committee report new law is enacted, the laa 1894 continues to operate, its
also rejected government acquisition for private parties, but powers in place,
the mord rejected this advice and negotiated a bargain for
industry in the rtfctlarr. Public Purpose or Private Interest?
The second version of the bill envisaged the social impact The phrase lpublic purpose, has tQ be construed accord¡ng t0 the
assessments (sias) to determine the appropriateness of public 0f the times in which the particular legislation is enacted and
purpose prior to approval and an expert group that would ad- strued, acquisition of estates for the purpose of preventing the co
ditionally make its recommendation to the committee for land tration of huge blocks of land in the hands of a few individuals a
acquisition at the state level. The sia's or the expert group's do ^with intermediaries is for a public purpose.1»
recommendations were not binding, with the entire process The reference in this 1952 judgment of the Supreme Co
potentially just a circuitous route to approval that finally rested upholding the land reform legislation in Bihar to "the sp
with the committee in its "larger wisdom". The rtfctlarr the times" sounds almost ominous in the current contex
also envisages sias with participation of affected communities Since the end of the 1990s, especially, the distinction be
and a public hearing17 with the appropriate government taking public and private purpose in development projec
the final decision, at best ensuring only greater awareness of blurring (Nilsen 2010). For instance, in the initial days
intended projects to affected persons. Objections to acquisition implementation of the sez Act, the transfer of the own
or sia reports can be heard by the district collector, who of land acquired by the state to sez developers mar
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decisive shift towards the exercise of eminent domain for pri- rule imposed by Indira Gandhi, and it continues to be ap
vate interest justified in the name of economic growth. Intense in the frontier states of Jammu and Kashmir and the n
resistance to acquisition for sezs led the government to revise east or through special security related legislation such as
this position and the commerce ministry issued a letter to all Unlawful Activities (Prevention) Act 2002 and the Ar
state governments in April 2007 that in the case of forcible ac- Forces (Special Powers) Act, 1957. Exceptional power ex
quisition for any sez, final approval would be withheld (Right cised through the state is a reflex used by political partie
to Information (rti) document available with author). How- all ideological persuasions. Skirting the critiques of the use
ever, legally sezs continue to be deemed public facility or com- exceptional power, however, is the contradiction th
mercial infrastructure, whereas they are capitalist enclaves exceptional power in the form of eminent domain was
dedicated to profit and growth. The letter issued by the Board used to institute redistributive justice through land refor
of Approval of sezs can always be retracted. In a revealing albeit weakly. If liberal democracy is understood as class
interview, then Commerce and Industry Minister Kamal Nath compromise rife with contradictions (cf Sandbrook et al 20
in whose tenure the sez Act 2005 was enacted noted (in the the dual nature of the power of eminent domain is one suc
context of the sezs preferring locations near urban areas): manifestation of contradictions. The dilemma of eminen
if ,»» t wo w t «11 main is perhaps best understood as a tension between the
It an investor comes and says I want to build my zone here, and 1 tell .
him to go build it somewhere else, he will leave. I can't do that. ...We forces of power operating through the Indian state. While it
have to be market-friendly. Where the investor wants the zone is his is tempting to secure the power of eminent domain f
[sic] business decision. Otherwise they won't come. We must have a egalitarian redistributive purposes, this potential has at b
model that works. As I said, they do contribute to infrastructure - been marginally realised) and a fundamental challenge i
inside the zone (Gopalakrishnan and Shrivastava 2008). - ,.
its historical abuse for greater centralisat
Contra to the espousal of difficulties in large-scale acquisi- wealth as the state
tion, the commerce ministry has recently unveiled the Nati- capitalist accumu
onal Manufacturing Policy (nmp) in 2011 that envisages large Critics have arg
national manufacturing investments zones (nmizs) of at least trine of eminent d
250 sq km each with integrated townships. The ambitious and possible to do aw
speedily progressing Delhi Mumbai Industrial Corridor (dmic) tling questions of
envisages nine such integrated township nmizs. At the same the power of the st
time the nmp identifies land as the biggest challenge for the substantive limits
creation of mega industrial and manufacturing zones! not overproduced s
The overall policy environment initiated in the country in trine of eminent do
recent times includes legislation for not just sezs and nmizs, of a democratic fra
but also Petroleum Chemical and Petrochemical Investment the curtailment o
Regions (pcpirs) of over 250 sq km each as well. A recent noti- law theorists points
fication by the finance ministry to standardise the definition of the state restrain
infrastructure across various ministries and laws is notewor- face of opposition
thy, as it deems all private undertakings in the realm of road gets reinterpr
construction, health, education, electricity, water and sezs as practice) dimensi
infrastructure projects (Sikarwar 2011). The grounds for absolute power o
deeming private investments through ppps, industrial corri- 1994, 2002). I tu
dors or nmizs as public infrastructure are flimsy. When private the paper,
entities undertake projects for private profit, and public pur
pose is to secure the development and welfare of all citizens 2 Limits to Abso
and particularly those deprived of access to basic necessities
like a regular livelihood, nutrition, housing, health and educa- 2.1 Vexatious S
tion, can these essentially divergent motives be conflated? It cannot be disputed th

Given its expanded scope and the conflation of private interest thority to appropriate th
with public purpose, the power of eminent domain now seems the State and consti
set to engender large-scale "accumulation by dispossession" though they generally s
(Harvey 2005); its only counter being popular resistance The power of em
to dispossession. power of the state. Sovereignty itself emerges in the context of
international relations as the right of the sovereign state to
1.2 Dual Nature determine its own affairs without interference from another
Postcolonial critiques of the role of colonialism in modern state. Recent discussions of multiple and overlapping sover
law point to the salience of exceptional power19 in shaping it. eignties point to the inherent contradictions in the term
Indeed, exceptional power was resorted to by the state as much as states grapple with pressures from international bod
during the Partition of India and Pakistan, as the Emergency multilateral and bilateral treaties, transnational corporation
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and to some certain extent, local bodies of self-governance sovereign power of eminent domain and securing redistribu
(cf Randeria 2007). The "global war on terror" constitutes tive and economic justice,
multiple cases in point that clearly defy principles of state sov
ereignty. The doctrine of constitutionalism holds that it is the 2.2 Eminent Domain vs the Third Tier of Democracy
individual citizen who is sovereign in a democracy. At the
same time, the Indian Constitution recognises specific ena- (a) The Fifth and Sixth Schedules to the Constitution:
bling provisions for the entitlements of specific communities Express recognition of community as a social unit requiring
like the minorities, scs/sts over and above individual rights in enabling provisions for protection and for social, economic
the interest of social, economic and political justice. Sovereign and political justice was envisaged for states with scheduled
powers of the state are also invoked by the right-wing funda- areas and for states with sts (but no scheduled areas) through
mentalists towards conservative and often violent agendas. In the Fifth and Sixth Schedules of the Constitution. While the
India, state sovereignty forms a domain rife with contest and Fifth Schedule refers to scheduled areas in states other than
challenge as citizens, activists and multiple political parties Assam, Meghalaya, Tripura and Mizoram, the Sixth Schedule
frequently challenge the powers of the state and shape the refers to the scheduled areas in the latter states,
rule of law. Under the Fifth Schedule, in each state with scheduled areas
In this scenario of complex and contesting forces of power or tribes, a tribes advisory
operating through the state, the sovereign power of the state vancement matters. The gov
has several valences. In the first instance, it arises as the sover- particular central or state law
eign power of the colonial state over its "subjects" that finds cable with qualifications in
salience in the application of eminent domain today. In the tions for peace and good go
second instance, post-Independence, it is the sovereign state's president's assent and upon
right to self-determination in the international arena, as a (a) prohibiting or restricting t
guard against aggression. In the current global dynamic, this the members of the sts; (b
can also be valued as relative autonomy for the government in members of the sts; and (c)
skewed fora, say like the World Trade Organisation. In the The tribal areas in the Sixt
third instance, in jurisprudence, especially since Keshavanand autonomous districts or au
Bharti, it exists as a somewhat tenuous balance between popular the governor) with district a
sovereignty and the basic structure doctrine (see Krishnaswamy cise of certain legislative and
2012). In the fourth instance, it arises in the context of rights spect to inheritance, land r
secured by social movements, more recently like the rti, the to village or town administ
Rural Employment Guarantee or the Forest Rights Act (fra). and divorce can be made by
Sovereignty is thus a vexatious concept that shifts its source in assent. Central and state Act
complex ways, but especially assumes greatest force against apply with qualifications pro
more vulnerable citizens. When citizens challenge forcible to the former and the governo
acquisition by the state, they also challenge its assumption of so. The councils possess c
sovereignty and this is a significant problem for democratic specified by the governor.
principles governing rule of law. It may be argued that under from mining licences or le
the Indian Constitution eminent domain is not exceptional minerals in a Sixth Schedule d
power given that the right to property is not a fundamental district council under agree
right. However, is it worthwhile to retain this inherently state government, with the g
contradictory concept that allows the state to presume "public dispute. The councils also
interest" and use "absolute" force depending on the vagaries garding the management of f
of the forces and ideologies that influence it? Thus, we find land (except reserved for
the expanded scope of eminent domain currently working "...that nothing in such law
towards capitalist growth and private interest. If acquisition acquisition of any land, whe
for development projects must make prior consent manda- public purposes in accordance
tory, the power of eminent domain with inherently overpro- in force authorising such a
duced sovereignty over citizens must be done away with. And Fifth and Sixth Schedules po
if equitable redistribution of land and resources may not to the power of eminen
include consent, the power to forcibly acquire land for redis- decision-making powers, if
tribution must be specified through clear and stable constitu
tional principles and mechanisms different from eminent (b) The 73rd Constitutional
domain. What principles might rights to land- and resource- Constitutional Amendment
use for all draw upon and what elements and complementary gressive laws in the country
mechanisms must it consider? I turn below to an examination Panchayati Raj 73rd Amen
of relevant legal provisions and principles for curtailing the Municipalities 74th Amendme
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the residents of panchayats or urban municipal wards to state and law is important to ensure socialjustice.lt also needs
determine their own development and function as local self- constant reinforcement with political organisation on the
governing units. These provisions have significant scope and ground, a vibrant culture of activism unfettered by interest
include features like the constitution of the gram and ward groups, conscientious media engagement, the judicial system
sabhas for the preparation and implementation of economic and other avenues for justice like commissions for human
development and social justice plans; the constitution of rights, religious minorities, scs/sts and women. In principle,
elected bodies at village, municipal ward and other levels with and in limited practice, the Fifth and Sixth Schedules, the
direct elections and reservations for scs/sts and women; local 73rd and 74th Amendment Acts and the pesa and fra accord
body finance through grants-in-aid and state and central a fundamental third tier to governance that has the potential
development schemes; and revenues through designated to bring the affairs of the state and governance more directly
taxes, duties, tolls, and fees (goi 1992). under the control of "citizens". A principle of subsidiarity
among the tiers of governance has not been promulgated
(c) Panchayat Extension to the Scheduled Areas Act 1996 in the Constitution though, and time and again, local body
and the Scheduled Tribes and Other Traditional Forest resolutions are thwarted in confrontation with the state's
Dwellers (Recognition of Forest Rights) Act 2006: Follow- power of eminent domain. The Pohang Steel Com
ing quick on the heels of the 73rd and 74th amendments and (posco) sez area in Odisha where panchayat resolutio
going further, pesa stipulates that the legislature of a state against the project are being consistently disregarded
shall not make any law which is inconsistent with the custom- case in point. The referendum for Mumbai sez (m
ary law, social and religious practices and traditional manage- Raigad in Maharashtra conducted in 2008 by the dis
ment of community resources and the right of the gram sabha authorities was an unprecedented effort in ascertaini
to safeguard and preserve traditions and customs, cultural sent, albeit post sustained opposition to the project. Yet,
identity, community resources and customary modes of dis- here the results were never disclosed to the public, rend
pute resolution. It provides for the mandatory approval of the legitimacy of the process itself suspect. The third ti
plans, programmes and projects for social and economic democracy needs to be explicitly enabled to effectively c
development by the gram sabha before they are taken up for eminent domain,
implementation and mandatory consultation (albeit not con
sent) with them before the acquisition of land for development 2-3 Judicial Activism?
projects or for r&r. Recommendation of the local bodies prior Some higher courts have recently been taking a stronge
to grant of prospecting licences, mining concessions or leases tion in upholding the rights of local bodies and in dism
for minor minerals is mandatory, pesa endows the local bodies land acquisition. In Surendra Singh vs the State of up (2011
with powers to prevent alienation of land in a scheduled area High Court of Allahabad struck down the use of the u
and to take appropriate action to restore any unlawfully alien- clause for acquisition for a prison, noting:
ated land (GOI 1996). ...the concept of public purpose in land acquisition has to be vi
The FRA, in addition to securing the right to forestland and from an angle which is consistent with the concept of a welfare
produce for forest dwellers along similar lines, further vests ...The Courts must examine these questions very carefully whe
the gram sabha with the powers of determining the nature of Indians lose their sma11 Property in the name of mindless acquis
... c *. • 1— j w .. at the instance of the State. If public purpose can be satisfied by not
individual and community forest rights and pass resolutions to , . , , . ,
rendering common [people] homeless and by exploring
such effect. It also stipulates that any resettlement of forest of acquisitioil) the CourtSj befo
dwellers on account of conservation activity will not be under- exercise of its [sic] power of jud
taken unless free prior consent of the dwellers has been taken, the concept of social and eco
and provides for penalty provisions against officers that vio- questions of public importan
late the forest dwellers' entitlements. Courts'cannot afford t0 act as m
The power of eminent domain contradicts the spirit of the In Jagpal Singh vs the Sta
body of legislation effecting significant local governance and Supreme Court noted t
decentralisation of power. This is not to argue that all is well been "grabbed by unscru
with the implementation of the Fifth and Sixth Schedules, the money power or political
73rd and 74th amendments or the pesa and fra. Indeed, there is not an inch of such la
is a mountain of evidence that discloses the weaknesses and people of the village, thoug
failures in the implementation of these laws that allow vested done with active conniva
interests within and outside local rural and urban communi- powerful vested interests
ties to prevail. The implementation of the 74th amendment in ing the acquisition of a v
urban areas is considered a failure in even constituting effec- Punjab where despite th
tive ward sabhas. Eminent domain holds sovereign over pesa occupiers, they continue
areas and the rights of indigenous communities are flagrantly When the villagers appea
violated. Implementation of fra is rife with failures in recog- tor held that to evict th
nising the rights of forest dwellers. However, arbitration by the interest" and directed
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thus colluding in the régularisation of an illegal occupation, then we have the laws to handle such situations... The law
The Supreme Court, while dismissing the acquisition in this [of land acquisition] is based on the twin sound principles of
instance further directed: the eminent domain of the sovereign and the largest good of the
...all the State Governments in the country that they should prepare lar8est: number (emphasis added).
schemes for eviction of illegal/unauthorised occupants of gram sabha/ The divergent views expressed in these judgments converge
panchayat/Poramboke [grazing lands]/Shamlat land and these must in safeguarding the power of eminent domain. The lack of a
be restored to the gram sabha/gram panchayat for the common use of ciear framework for rights to land- and resource-use (or even
villagers of the village ...The said scheme should provide for the narrowl defined) and effectiye safeguards a ainst
speedy eviction of the illegal occupant, after giving him [sic] a show .. . .. . . . ,
cause notice and a brief hearing. Long duration of such illegal occupa- dispossession add to jurisprudential
tion or huge expenditure in making constructions thereon or political rights of people and communities faced w
connections must not be treated as a justification for condoning this tion. These rights cannot be restricted to
illegal act or for regularising the illegal possession. Régularisation appropriate determination of public purpo
should only be permitted in exceptional cases, e g, where lease has prjor informed consent. Unless such a f
been granted under some government notification to landless labour- , , . . . r . . , .
ers or members of scs/sts... (ibid: 4). dated' clearly the P°Wer °f emlnen
lenged in a court of law.
In these instances, the higher courts have questioned the
procedural irregularities and the application of public purpose, 2*4 Rights to Land- and R
the principle of eminent domain per se remains unchallenged. Admittedly, the Land Acquisition
Judicial activism is found wanting in this regard. Singh (2006) 0f colonial vintage is a drastic law,
argues that the erosion of the right to property is an outcome of confers on the State a power w
a bargain of power in favour of the legislature and executive Even though right to property
over the judiciary that violates the doctrine of the separation of never a natural riSht>and is act*
. , . ,, , . has to be accepted that without right to some property, other rights
powers ensuring judicial review, and has created a unitary cen- become illusory23
tre of power with the State. As such, compensation based on The imperative for land reforms derives f
legislated formulae of small private transactions at market mandate for equality before law and the pr
value of land regularly undervalue the loss of entire ways of ensure redistributive justice. It is reiterate
life for affected communities and the state's liability towards pendence in the Common Minimum Program
these, overproducing the public purpose of a project. As public ded?r,ued on 24 May 20°4'that 'la"d
. . , . .111 . . . ,11 land through implementation of land ceiling and land redistribution
purpose is solely determined by the executive, it is vulnerable legislation. No reversal of ceiling will be
to rent-seeking capture (ibid). Thus, we find, in Sooraram The Constitutional arrangements have devolv
Pratap Reddy VS District Collector, Ranga Reddy District (2008) the Union to oversee the fostering of econom
the Supreme Court upheld the decision of the high court States. Land Reforms remain a means of d
regarding the acquisition proceedings for an information tech- marginalised and, therefore, a part of th
1 1 .u u • -ui . "r> 1 ti°n Obid: vi).
nology park through a ppp as permissible stating: Develop
ment of infrastructure is legal and legitimate 'public purpose' T
for exercising power of eminent domain. Simply because a con
company has been chosen for fulfilment of such public pur- in
pose does not mean that the larger public interest has been t
sacrificed, ignored or disregarded. It will also not make exer- brie
cise of power bad, mala fide or for collateral purpose vitiating rig
the proceedings." Here, the conflation of public purpose and 44
private interest, backed by the power of eminent domain was r
upheld by the court. law. Article 31 of the Constitution was repealed by the same
While some judgments cite mounting instance of inequality amendment and took with it the constitutional ob
and dispossession, they reinforce the state's sovereignty and pay compensation except to educational institut
its power of eminent domain. In Mahanadi Coal Fields Ltd vs lished and administered by minorities under Arti
Mathias Oram (2010) on the matter of compensation that was and for land personally cultivated by an owner t
not paid to villagers in over 20 years of the acquisition of land exceed the statutory ceiling inserted under Article 3
by Mahanadi Coalfields, the court ensured a scheme by which 17th amendment.
the compensation could be speedily awarded to people and But this is not an argument for the reinstatement o
added: "Most of the mineral wealth of India is not under unin- to property as a fundamental right. What prin
habited wasteland. It lies mostly under dense forests and areas rights to land- and resource-use for all need to dr
inhabited by people who can claim to be the oldest dwellers of what elements need to be considered to move
this ancient country. Any large-scale mining, therefore, needs narrowly conceived individual right to property? Ar
not only huge investments and application of highly developed the Directive Principles of State Policy in the C
technology but also en masse relocation of the people... But offers a relevant principle to develop a framewo
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that the ownership and control of the material resources of a and failed to clarify who a tiller was, creating confusion and
community should be distributed to best serve the common conflicts among mst communities over their rights (Wolford
good, and such that the operation of the economic system does 2007). Clear and variegated rights and access to land and
not result in the concentration of wealth and means of produc- resources for specific communities and people need to thus be
tion. Land reform legislation also flows from these principles specified. The fra, for example, recognises the claims of non
and draws upon redistributive and economic justice and the adivasi forest dwellers to forests and their resources but in
right to life and liberty; a fuller treatment can help us get out practice, large numbers of such applications are denied recog
of the bind of the dual nature of eminent domain where the nition by officials, posing serious challenges for the rights of all
temptation of its redistributive potential hangs in the long forest dwellers (nffpfw 2011). Many legally recognised rights
shadow of its historical abuse. also do not take into account informal arrangements for
land- and resource-use that exist locally and are not officially
'Pro-Poor Land Reforms' accounted for. Direct consultations with local communities are
Borras and Franco (2010) sum up key elements of "pro-poor imperative and must be developed into any lega
land reforms" that help distinguish pro-poor land policies At the same time, the right to shelter n
from the market-led agrarian reforms (mlars): such policies guarded. A recent judgment of the Constit
ensure protection or transfer of land-based wealth and politi- South Africa struck down the KwaZulu-Natal
cal power in favour of the poor; are class-conscious, histori- the movement "Abahlali base Mjondolo's" (Zul
cal, gender- and ethnic-sensitive; productivity increasing, the shacks") challenged the eviction of slum d
livelihood enhancing and rights-securing. In India these need Slums Act empowered municipalities to ev
to be complemented with robust and responsive agrarian pants from state-owned land and derelict build
policies that ensure food sovereignty24 and the sustainability force private landowners to do likewise or fac
of local agrarian economies. Identifying the plurality of land- onment. The court struck down the legislatio
less and near-landless rural poor that include peasants, la- Section 16 of the Act that gave provincial ho
bourers, indigenous communities, artisanal fisherfolk-cum untrammelled powers to instigate evictions
rural labourers, men and women, etc, Borras and Franco ers, and held that the Act was in contravention w
(ibid) argue that formal land ownership through reform tutional right of every South African for acce
can be by the state, community or private entity - individual housing and was inconsistent with several e
or group, as long as the "bottom-line is about reforming struments (see Tolsi 2009). Historically, the co
land-based social relations. ...[reforming] the terms under provisions of the erstwhile Union of Soviet S
which land-based wealth is created, appropriated, disposed and China have guaranteed that the state can
and consumed as well as the ways and means by which such an individual's dwelling house and similar pers
processes are effectively controlled by different groups..." even by legislation (Basu 2008).
(emphasis in original, ibid: 10). The right to property needs to be viewed as wider than
The recently developed "Voluntary Guidelines on the Re- private property and rights to land- and resource-use m
sponsible Governance of Tenure of Land, Fisheries and Forests secured such that they minimally guarantee rights to
in the Context of National Food Security" (fao 2012) endorsed livelihood and flowing from these, life and liberty, to
by the United Nations (un) Committee on World Food Security development of rights to land and resources through indi
establish principles for securing the tenure of land, fisheries and entitlements can lead to the creation of a bigger marke
forests (albeit not water and minerals) as a fundamental right: them and their greater concentration by the market's "in
human dignity; non-discrimination; equity and justice; gender hand". The proposed Land Titling Bill 2011 thus aims at
equality; holistic and sustainable approach to the management ing land records for greater accuracy, and seeks to ease
of natural resources; and consultation and participation. They brances and saleability in land markets (Ramanathan 2
call states to provide a legal recognition for legitimate tenure Struggles for land reforms led by the non-governmental o
rights, particularly customary and informal tenure rights and isations (ngos) have held national protests and rallies o
their guaranteed legal protection against forced evictions, issue of land reforms in recent years but need to be atte
They also call for the recognition and protection of the com- to demands that unwittingly enable commodification o
mons and their collective use and management and indicate and resources through individual entitlements. At th
the need for redistributive reforms (see Monsalves 2012). time, collective or usufruct rights insensitive to a mixed
Land reforms in Brazil in recent times initiated by the context would lead to the alienation of dalit and other
Movement of Landless Workers (mst) offers a prescient caution jan communities and securing private entitlements in
for the Indian context as well. The mst used the constitu- contexts may better safeguard rights. We need a legal
tional provision that all land must be used for socially produc- nition of complex and contextualised land - and resou
tive purposes to occupy unused land. It privileged usufruct rights arrived at with direct consultation with people
rights to tillers to counter the dynamic of commodification communities through state and non-state channels. Th
under the market-led agrarian reforms (mlars). However, sibilities of private, collective, usufruct and other use rig
usufruct rights were embedded in "land to the tiller" arguments land and resources thus need to be considered contex
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sensitive to caste, religious, gender, ethnicity and other forms Tata Motors factory in 2009 from the communist-ruled state of
of disparity prevalent in any given area of the country. West Bengal where popular resistance to land acquisition un
leashed a spiral of violence (and eventually led to the defeat of
2.5 Eminent Domain, Continued the Communist Party in power in the state), to the Hindu
Law, like the state, works at the behest of social forces, ideo- right-ruled state of Gujarat is an ominous example of a resolu
logy or interest groups, and the limit of a law is defined by the tion reached at the limits of law. Authoritarian political ten
interest it represents (cf Abrams 1982). This limit is broached dencies regardless of ideological persuasions will likely not
when resistance to its predefined interest arises, and can be hesitate in "fixing" sovereignty to back their agenda. On the
overcome or resolved through special force (exceptional other end of the spectrum, beyond the limits of law, there is
legislation), or through more deliberative, cognitive and the Maoist resolution that has declared war on the Indian state
self-restraining, juridical processes that also require powerful and has this very plunder of land and resources at the heart of
organised political forces mandating them. In the recent ag- its struggle.25 Given the long democratic tradition of non
gressive overreach of capitalists and the state in India for land violent popular social action, dissent and legal activism in
and resources, we find a willingness to overcome resistance to India, the course that potential resolutions for the conflict over
plunder by resorting to draconian measures through the rein- right to land, resources, rule of law and social justice will take
forcement of the sovereign power of the state over its citizens however, is as yet undetermined and contested; the possibili
as witnessed in the posco area. The move of a controversial ties remain open.
NOTES
26% of the profits of mining coal and lignite accounted for while securing rights to land and
and amounts equal to the royalty for other ma
1 Land acquisition always involves other resour
resources.
jor minerals.
ces like water, forests and minerals attached to 23 Surendra Singh vs State of UP, 2011: 3.
the land. it Even the PESA (discussed below) and the 24 Food sovereignty commonly refers to lo
2 By neo-liberal reforms I refer to the specific Samata judgment of 1997 upholding the rights ecologically appropriate and sustainable fo
policies aimed at instituting structural of STs in scheduled areas that expressly prohib
adjust agriculture, livestock and fisheries systems
ment, liberalisation and privatisation in its the
mining leases to non-tribals in these areas must not to be confused with state sovereign
economy that intensified in the country have from not been able to effectively stop this proc 25 For the Maoist position on the plunder of
1991 ess of dispossession (see Krishnakumar 2004; and resources see Azad (2010).
3 The State of Bihar vs Kameshwar Singh 1952. Das 2005; Lahiri-Dutt et al 2012).
12 STs and SCs refer to communities recognised
4 See Guha (1981); Dirks (1986); D'Souza (2004);
Gidwani (2008). by the Indian Constitution as historically mar REFERENCES
5 The gaonkars were considered the original ginalised and oppressed by the Hindu upper
caste and the non-Hindu communities in a Abrams, Philip (1982): Historical Sociology (Ith
inhabitants of a village and the lands and
resources of the village were distributed equi position of dominance. Cornell University Press).
tably among them through auctions. The 13 Similar to export processing zones (EPZs) Azad
but (2010): Edited Text of 12,262-Word Respo
Portuguese retained this system as Communi more ambitious, the SEZ law was enacted in by Azad, Spokesperson, Central Committe
dades which were not caste, tribe and gender 2005 and aimed at creating export-led enclaveCommunist Party of India (Maoist), available
egalitarian (it is unclear but unlikely if original economies with competitive tax and duty conhttp://www.thehindu.com/multimedia/archiv
gaonkaris included dalits, STs and women as cessions for foreign global investors. O0i03/Edited_text_of_i2_2_i03996a.pdf (l
members), but land and resources are held 14 col The new PPP policy being drafted by the finaccessed on 14 January 2011L
lectively by Communidade members and auc ance ministry seeks to create Special Purpose Basu, D D (2008): Introduction to the Constitut
tioned to "users" by lease. Though private pro Vehicles (SPVs) for the execution of such partof India (Gurgaon: LexisNexis Butterworth
perty also existed in Goa, the British colonial nerships between the government and theWadhwa), Nagpur.
heritage of the doctrine of eminent domain private sector. Borras, S and J Franco (2010): "Contemporary
and private property entitlements gained
15 Wherever respondents have so requested, courses and Contestations around Pro-Poor
precedence as the Indian state took over the I have withheld their identification. A senior Land Policies and Land Governance", Journal
affairs of Goa. It should be noted that today in bureaucrat would typically be any bureaucrat of Agrarian Change, 10(1).
some Goan villages ST members and women in a ministry (state or central) at a senior secre
Das, Prafulla (2005): "Mines of Conflict", Frontline,
also have shares in the Communidade lands
tary or department director's level. 19 November, 2 December.
depending on their economic status.
16 A senior industry representative would typiDias, Anthony John (2004).: "Development' and
6 While land is a state subject (and hence the cally be at the chief executive officer or vice
Impoverishment: A Study of the Kevadia Colony
land ceiling and reform laws varied from state
president level of a company. Project for the Sardar Sarovar Dam in Gujarat",
to state); land acquisition is a concurrent sub
17 Environmental impact assessments under the unpublished doctoral dissertation, National
ject such that the central legislation on acquisi
Environmental (Protection) Act 1986 mandate Law School of India University, Banglore,
tion also applied as a minimal benchmark to all
public hearings as part of the environmental retrieved 10 June 2011 from the University
the states. In practice, this has meant that
clearance required for certain category of Library.
states that did not enact their own acquisition
laws could use the 1894 law.
projects. However, the proceedings of these Dirks, Nicholas B (1986): "From Little King to Land
hearings have no legal force and are merely to lord: Property, Law, and the Gift under the
7 This Act also inserted Article 300A leaving the
be taken into account while granting clearance Madras Permanent Settlement", Comparative
right to property as a constitutional right so
to a project. Studies in Society and History, 28, pp 307-33.
that a person could not to be deprived of it save
by authority of law.
18 The State of Bihar vs Kameshwar Singh, 1952; 3. D'souza, Rohan (2004): "Rigidity and the Affliction
19 See for instance Hussain (2003) for a discus
8 This provision can be considered the fulcrum of Capitalist Property: Colonial Land Revenue
sion on emergency rule. and the Recasting of Nature", Studies in History
for recently proposed measures for acquisition
that seek to incorporate private investment in20 While special security legislation is unquestiona (New Delhi: Sage Publications).
infrastructure and industry into the definition bly a critical feature of the sovereign power of Dwivedi, G (2010): Public Private Partnerships in
of public purpose. the state over citizens needing critical redress, Water Sector: Partnerships or Privatisation?
9 By peasants I refer to both landowning farmers suffice it to merely flag it here in the interest of (Badwani: Manthan).
and landless agrarian workers. the focus of this paper on eminent domain. Dyzenhaus, David (1999): Recrafting the Rule of
10 The newly proposed Mines and Minerals 21 The State of Bihar vs Kameshwar Singh, 1952:42. Law: The Limits of Legal Order (Oxford: Hart
(Development and Regulation) Bill 2011 seeks22 Thanks are due to Albertina Almeida for point Publishing).
to consolidate the mining of all minerals into ing out land- and resource-uses that are not ET (2012a): "GoM Inches Closer to Consensus on
one law, with registration for coal minerals recognised by law but form local practices and Land Bill: Sharad Pawar to Address Key Issues
administered by the Gol. It provides for sharing livelihood resource-bases and thus must be Next Week", The Economic Times, 28 September.
Economie & Political weekly E32S9 may 11, 2013 vol >XLVIII NO 19 51

3.6.73.78 on Sun, 03 Oct 2021 06:52:38 UTC
SPECIAL ARTICLE
- (2oi2b): "Land Acquisition Law Has to Reflect Land and Resource Rights: Pan-African Perspec Reliance Natural Resources Ltd vs Reliance Indus
Business Imperatives, Not Be the Patchwork tives (Cape Town: Programme for Land and tries Ltd (2010): 7 See 1.
Quilt", The Economic Times, 12 December. Agrarian Studies). Reuters (2012): "Balancing Act for India in Over
FAO (2012): "Voluntary Guidelines on the Responsi Krishnakumar, A (2004): "A Tribal Struggle", haul of Archaic Land Law", The Economic
ble Governance of Tenure of Land, Fisheries and Frontline, 21(19). Times, 28 August.
Krishnaswamy, S (2012): Democracy and Constitu Samuel Raja, John and Kaushik Datta (2011):
Fbrests in the Context of National Food Security",
Food and Agricultural Organisation, Rome. tionalism in India: A Study of the Basic Struc "What's Wrong With the Real Estate Sector in
Fernandes, W (2008): "Paying the Price for Some ture Doctrine (New Delhi: OUP). India", Economic Times, 9 June.
one Else's Displacement", Infochange, http:// Lahiri-Dutt, K R Krishnan and N Ahmad (2012): Sandbrook, R et al (2007): Social Democracy in the
infochangeindia.org/agenda/migration-a-dis "Land Acquisition and Dispossession: Private Global Periphery (Cambridge University Press:
placement/ paying-the- price-for-someone Coal Companies in Jharkhand", EPW, XLVII (6). New York).
elses-displacement.html Mahanadi Coal Fields Ltd vs Mathias Oram 2010, Scheuerman, William (1994): Between the Norm
- (2002) : "Displacement and the Land Acquisition 11 SCC 269, http: //Judis.Nic.In and the Exception: The Frankfurt School and the
Act 1894", Combat Law, Vol 1, Issue 1. MoC 5 April (2007): "Letter to State Governments Rule of Law (Cambridge: MIT).
Firstpost (2012): "India Inc Still Unhappy, Activists Regarding Compulsory Acquisition" (New - (2002): "Cosmopolitan Democracy and the
Slam Modified Bill", Firstpost, 18 October. Delhi: Gol). Rule of Law", Ratio Juris, 15.
Ghildiyal, Subodh (2012): "Government Sweetens Monsalves, Sofia (2012): "A New Tool for the Fight Sikarwar, D (2011): "Finmin Sets Out to Clear Con
Land Acquisition Deal", The Times of India, against Resource Grabbing?", Right to Food fusion Over Infrastructure", The Economic
13, July. Journal. Times, 14 September.
Gidwani, Vinay (2008): Capital, Interrupted: Agrarian NDTV (2012) "Land Acquisition Bill: Radical ChangesSingh, J (2006): "Separation of Powers and the Ero
Development and the Politics of Work in India Proposed by Parliamentary Panel", NDTV, 17 May. sion of 'Right to Property' in India", Constitu
(Minneapolis: University of Minnesota Press). NFFPFW (2011): "People's Forest Rights Rally tional Political Economy, 17.
Gol (1985): The Land Acquisition Act 1894 (New Demanding Community Rights Over NaturalSooraram Pratap Reddy vs District Collector, Ranga
Delhi: Government of India). Resources", email communication. Reddy district, 2008,9 See 552.
- (1992): Constitution (Seventy-third Amendment) Nilsen, Alf (2010): Dispossession and ResistanceStarr, June and Jane F Collier ed. (1989): History
Act 1992 (New Delhi: Government of India). in India: The River and the Rage (New York: and Power in the Study of Law: New Directions
- (1996): Panchayats (Extension to the Scheduled Routledge). in Legal Anthropology (Ithaca, NY: Cornell
Areas) Act 1996 (New Delhi: Government of PTI (2012a): "Fieri for Changes in Land Acquisition University Press).
India). Bill", The Economic Times, 7 September. State of Bihar vs Kameshwar Singh Air (1952): Sc
- (2007a) : The National Rehabilitation and Reset - (2012b): "Assocham Proposes Changes in Land Http://Judis.Nic.In
tlement Policy, 2007 (New Delhi: Government Acquisition Bill", The Economic Times, 5 November Surendra Singh vs The State of UP (2011): Sc Http://
oflndia). Ramanathan, Usha (2009): "A Word on Eminent Judis.Nic.In
- (2007b): Land Acquisition (Amendment) Bill Domain", Lyla Mehta (ed.), Displaced by Devel Tolsi, Niren (2009): "Landmark Judgment in Favour
2007 (New Delhi: Government of India). opment: Confronting Marginalisation and Gen of Poor", Mail&Guardian. http://www.mg.co.za/
- (2009): Committee on State Agrarian Relations der Injustice (New Delhi: Sage Publications), article/2oo9-io-i8-landmark-judgment-in-favour
and Unfinished Task of Land Reforms: Vol 1 PP 133-45 of-poor (last accessed on 17 September 2012).
Draft Report (New Delhi: Government oflndia). - (2010) : "On Eminent Domain and Sovereignty",Universal (2012): The Constitution of India: Bare Act
- (2011a): The Land Acquisition, Rehabilitation Seminar, 613, pp 71-4. With Short Notes (New Delhi: Universal Law
and Resettlement Bill, 2011 (New Delhi: Gov - (2011): "Land Acquisition, Eminent Domain Publishing Co).
ernment oflndia). and the 2011 Bill", EPW, XLV1 (44 and 45). Vincent, Joan (1989): "Contours of Change: Agra
- (2011b): The Land Acquisition, Rehabilitation Ramaswamy, Sudhir (2009): Democracy and Consti rian Law in Colonial Uganda, 1895-1962" in
and Resettlement Bill, 2011 (New Delhi: Gov tutionalism in India: A Study of the Basic Structure June Starr and Jane F Collier (ed.), History and
ernment oflndia). Doctrine (New Delhi: Oxford University Press). Power in the Study of Law: New Directions in
- (2012): The Right to Fair Compensation and Ramadorai, T (2012): "Land Acquisition Law Has Legal Anthropology (Ithaca, NY: Cornell
Transparency in Land Acquisition, Rehabilita To Reflect Business Imperatives, Not Be the University Press).
tion and Resettlement Bill (New Delhi: Govern Patchwork Quilt", The Economic Times, 12 August.Vohra, A and M Das (2012): "Land Acquisition Bill:
ment oflndia). Randeria, Shalini (2007): "The State of Globalisa Government Overrules Key Changes Proposed
Gopalakrishnan, S and A Shrivastava (2008): "SEZs tion: Legal Plurality, Overlapping Sovereign by Parliamentary Panel", NDTV, 1 July.
Have Nothing to Do with Land Acquisition", ties and Ambiguous Alliances between Civil Wolford, Wendy (2007): "Land Reform in the Time
Seminar, 582. Society and the Cunning State in India", Theory, of Neoliberalism: A Many-Splendored Thing",
Goswami, U (2012a): "Land Bill in Current Form to Culture and Society, 24(1): 1-33. Antipode, 39(3).
Affect Industrialisation: India Inc", The Eco
nomic Times, 9 June.
- (2012b): "Jairam Ramesh Tries to Dispel Appre Survey
hension about Land Bill before GoM Meeting",
The Economic Times, 26 September. September 8,2012
- (2012c): "Land Acquisition Bill: Stiffer Consent Revisiting Communalism and Fundamentalism in India
Requirements for Land Acquisition for Private
by
Companies Restored", The Economic Times,
10 October.
Surya Prakash Upadhyay, Rowena Robinson
Grain, Briefing (2008): Seize! The 2008 Land Grab
for Food and Financial Security, http://www. This comprehensive review of the literature on communalism - and its virulent offshoot, fundamentalism
grain.org/briefings_files/landgrab-2008-en.
- in India considers the various perspectives from which the issue has sought to be understood, from
pdf (last accessed on 10 August 2010).
Guha, Ranajit (1981): The Rule of Property in precolonial and colonial times to the post-Independence period. The writings indicate that communalism
Bengal: An Essay on the Idea of Permanent is an outcome of the competitive aspirations of domination and counter-domination that began in
Settlement (New Delhi: Orient Longman). colonial times. Cynical distortions of the democratic process and the politlcisation of religion in the
Harvey, David (2005): A Brief History ofNeolibera
early decades of Independence Intensified it. In recent years, economic liberalisation, the growth of
lism (New York: Oxford University Press).
Hussain, Nasser (2003): The Jurisprudence of Emer opportunities and a multiplying middle class have further aggravated it. More alarmingly, since the
gency: Colonialism and the Rule of Law (Ann 1980s, Hindu communalism has morphed into fundamentalism, with the Sangh parivar and its cultural
Arbor: The University of Michigan Press). politics of Hindutva playing ominous roles.
Iyer, Ramaswamy (2007): "Towards a Just Dis
placement and Rehabilitation Policy", Economic For copies write to:
& Political Weekly, 42 (30).
Circulation Manager,
Jagpal Singh vs The State of Punjab and Others, Air
2011, Sc Http://Judis.Nic.In Economic and Political Weekly,
Kameri-Mbote, Patricia (2004): "The Impact of 320-321, A to Z Industrial Estate, Ganpatrao Kadam Marg, Lower Parel, Mumbai 400 013.
International Treaties on Land and Resource
email: circulation@epw.in
Rights" in Munyaradzi Saruchera (ed.), Securing
52 may il, 2013 vol xlviii no 19 13353 Economic & Political weekly

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Limits to Absolute Power: Eminent Domain and the Right to Land in India

Author(s): PREETI SAMPAT

Stable URL: https://www.jstor.org/stable/23527343

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Limits to Absolute Power

Infrastructure across the country must expand rapidly. In

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tion, can these essentially divergent motives be conflated? It cannot be disputed th

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